Michigan abruptly sets PFAS cleanup rules

LANSING, MI -- Michigan is establishing enforceable cleanup criteria for a pair of unregulated fluorochemicals polluting drinking water supplies around the state.

The former fire training area at Wurtsmith Air Force Base on June 1. 2016. Drinking water wells around the base are contaminated with PFAS chemicals, also called PFCs. The chemicals were in firefighting foam used at the base. (Garret Ellison | MLive.com)

The new rules for PFOS and PFOA -- a pair of per- and polyfluoroalkyl substances known as PFAS or PFCs -- take effect Tuesday, Jan. 10, a day after the state issued the coordinated announcement from Gov. Rick Snyder's office and environmental regulators.

The new legally-enforceable limit of 70 parts-per-trillion (ppt) for the two chemicals mirrors the Environmental Protection Agency's health advisory level for PFOS and PFOA, compounds linked to some cancers, thyroid disease and other health problems.

Although the criteria has the force of law, it is primarily a rule governing environmental remediation activities. It's not the same as a Maximum Contaminant Level (MCL), commonly known as a drinking water standard.

Nonetheless, Michigan has now officially set acceptable concentrations of PFOS and PFOA in groundwater used for drinking water purposes, allowing regulators to issue violation notices and take legal action against polluters who don't comply with the rules.

PFAS chemicals like PFOA and PFOS have been found above 70-ppt in 78 private groundwater wells in Kent County, 14 wells near Grayling and one well near the former Wurtsmith Air Force Base in Oscoda.

Kent County wells are contaminated by PFAS in 3M's Scotchgard fabric protector used by Wolverine World Wide at its former Rockford tannery. Tannery sludge waste was dumped in landfills, gravel pits and spread on farms as crop fertilizer years ago.

Wolverine has been voluntarily testing wells and giving bottled water and filtration systems to affected homes since the contamination was discovered in March 2017. Now, the Michigan Department of Environmental Quality will have authority to require those and other actions in the 14 communities with known PFAS issues statewide.

Part 201 of Michigan's Natural Resources and Environmental Protection Act allows the state to seek reimbursement in court for pollution cleanup activities, or seek an injunction against a polluter in court if the contamination exceeds the new criteria. "Once these criteria are established, then an exceedance of the criteria without permission puts a responsible party at risk of having to pay for or perform cleanup," said Charles Denton, an environmental attorney at Barnes & Thornburg in Grand Rapids. DEQ director Heidi Grether said the agency's philosophy is "that we expect responsible parties to voluntarily comply with state clean up criteria, which is why we work in close collaboration with them to help bring them into compliance."

"This rule update allows us the proper enforcement tools to ensure state law is met on the occasion that we need them, should compliance become a challenge," she said. Wolverine said it "welcomes this decision because it brings greater clarity to the discussions involving these compounds." As it has in the past, Wolverine again called the 70-ppt benchmark "very conservative," and said "we will defer to the regulatory agencies and scientific experts for their knowledge and experience, and will continue to follow their guidance as we work to restore the community's confidence in its water."

Denton called it "odd" for the new rules to be suddenly pulled out of an ongoing broader update to the state's Part 201 environmental cleanup criteria, which has been under development for years. Denton said the PFAS criteria was originally proposed in August. "They pulled out this one set and made it effective immediately, whereas the rest of the Part 201 criteria is going through the normal public process," he said.

The new rules come days before a deadline for resolution of a dispute between the DEQ and U.S. Air Force over PFAS levels in Van Etten Lake near Wurtsmith base in Oscoda. Concentrations in the lake exceed the state's 12-ppt surface water standard for PFOS, a related cleanup benchmark for lakes and rivers. Use of PFAS-laden firefighting foam at Wurtsmith, Camp Grayling, the Alpena National Guard training center and other military bases has contaminated water supplies.

The PFAS criteria decision was made concurrently with an announcement from Gov. Snyder's office about creation of two science advisory committees that "may lead to recommended changes in the future" for enforceable PFAS levels. The committees are part of Michigan's new PFAS Action Response Team (MPART), and "will coordinate and review medical and environmental health PFAS science and develop evidence-based recommendations" within the next six months. One committee will be led by David Savitz of Brown University and the other by Eden Wells, chief medical officer at the Michigan Department of Health and Human Services, who is currently facing charges related to her role in the Flint water crisis. Critics of the EPA's health advisory level say mirroring that level for groundwater cleanup falls short of setting standards as health-protective as other states have done. "While we commend Michigan's efforts to act, the state could have gone further to protect health," said David Andrews, a senior scientist at the Environmental Working Group. Andrews said New Jersey is moving ahead with drinking water standards of 14- and 13- ppt for PFOA and PFOS respectively, and a safe level of exposure may be less than 1-ppt. A bill in the Michigan house has proposed a 5-ppt standard. The EPA does not have legally enforceable standards for PFOS and PFOA in drinking water. The advisory level is a non-enforceable guideline that was established in 2016. "At the end of the day, PFOA, PFOS and other similar chemicals do not belong in drinking water and the cost for cleaning up this mess should be on the polluters," Andrews said.